Race, Gender, and Religion in the Courtroom: Three Critical Implications of R v NS – Part I
At first glance, R v NS, 2012 SCC 72 [NS], appears to be a case about the limits of religious accommodation in Canadian courtrooms. While this issue is a significant concern, what is equally important about this case is the insight it provides into the Court’s ability to adequately address issues of equity, inclusion, and fairness in Canadian society.
A. The Facts
On 20 December 2012, the Supreme Court of Canada released its decision in R v NS. N.S. is a Muslim woman who wears a niqab. She alleged that she was sexually assaulted by two male family members. At trial, she refused to remove her niqab to give testimony, submitting that her religious beliefs prohibited her from doing so. Defence counsel argued that allowing N.S. to testify while wearing a niqab would severely compromise the accused’s right to a fair trial. In their view, the niqab, a religious garment that reveals only a woman’s eyes, would prevent the judge from properly assessing N.S.’s credibility and would thereby unduly hinder cross-examination.
B. Procedural History
The preliminary inquiry judge ordered N.S. to remove her niqab for testimony. His decision turned on his finding that N.S.’s religious beliefs were ‘not that strong’ because she had admitted that she would remove her niqab in some circumstances (i.e., for her driver’s licence photo and for cross-border identification). N.S. requested an order from the Ontario Superior Court of Justice to quash the preliminary inquiry judge’s order. Justice Marrocco held that N.S. could testify while wearing her niqab if she demonstrated a sincerely held religious belief but that her testimony could be excluded at trial if the judge made a finding that her niqab impeded cross-examination. N.S. appealed.
The Ontario Court of Appeal found that the procedure to follow when a witness wishes to testify while wearing a niqab is to determine whether she has a sincerely held religious belief and whether wearing the niqab would result in unfairness for the accused. A finding of procedural unfairness would lead to an order for the witness to remove her niqab. The Court of Appeal returned the matter to the preliminary trial judge, and N.S. appealed to the SCC.
II. THE SCC DECISION
In reasons delivered by Chief Justice McLachlin on behalf of Justices Deschamps, Fish, and Cromwell a majority of the SCC returned the matter to the trial court for redetermination and laid out the legal framework that ought to be applied in such cases. In reaching its decision, the Court drew from its previous jurisprudence examining the appropriate approach—the Dagenais/Mentuck test—to deciding cases in which conflicting rights are at stake (see Dagenais v Canadian Broadcasting Corp,  3 SCR 835; later refined in R v Mentuck, 2001 SCC 76). The majority stated that when rights truly conflict, alternatives should be sought to accommodate both sets of rights. Where a resolution is impossible, the judge must then balance the negative and positive effects of limiting the right and make a reasoned determination on a case-by-case basis.
The majority concluded that a ‘clear rule’ that always allows or always prohibits niqabs in the courtroom is inappropriate because neither rule takes into consideration the contextual approach to conflicting rights contemplated by the Dagenais/Mentuck test. In cases where the removal of a niqab is at issue, the judge must assess the extent to which wearing a niqab actually interferes with the determination of a witness’s credibility. This assessment requires considering the importance of the testimony that the witness is providing and whether her testimony will be contested at trial. Furthermore, the judge is required to consider the impact of removing the niqab on the individual. This consideration does not mean that the judge should assess the sincerity of the witness’s beliefs (as the preliminary inquiry judge had done in this case). It means that the judge must acknowledge the harm caused by compelling the witness to violate her religious beliefs.
The majority found that the preliminary inquiry judge did not apply the proper analysis in determining whether N.S. should be required to remove her niqab. They also found that the preliminary trial judge erred in questioning the depth of N.S.’s religious beliefs. For these reasons, the majority returned the matter to the preliminary trial judge for redetermination. Justices LeBel and Rothstein submitted concurring reasons for the majority. Justice Abella dissented, arguing that the harm of requiring a woman to remove her niqab at trial outweighed any potential adverse effects on the accused’s right to a fair trial.
III. THE THREE BEES IN MY BONNET
In addition to advancing the criminal law and evidence law jurisprudence, NS, insofar as it concerns a racialized community, provides a rare opportunity for the SCC to comment on the past and present state of discrimination in Canada. At the centre of this case is a woman, presumably a woman of colour, who is a member of a religious group that continues to face discrimination in Canada. The SCC’s decision in NS raises difficult questions about religion, gender, and race. The first of three concerns I raise in this two-part comment relates to the historical backdrop presented by the majority to frame this case.
A. Pause: Adventures in Historical Revisionism
The majority’s reasoning makes several pronouncements about Canadian tradition that, in my view, are inconsistent with Canadian colonial history. Two statements provide examples of the Court’s diversion from this country’s settlement history.
First, Chief Justice McLachlin writes that
to remove religion from the courtroom is not in the Canadian tradition. Canadians have, since the country’s inception, taken oaths based on holy books – be they the Bible, the Koran or some other sacred text. The practice has been to respect religious traditions insofar as this is possible without risking trial fairness or causing undue disruption in the proceedings (NS at para 53 [emphasis added]).
With respect to the Chief Justice, this presentation of Canadian tradition is incomplete. For example, the inception of Canadian settler society involved a systematic and violent attempt to separate indigenous peoples from their spiritual practices. At the time of Confederation, the groundwork was laid for residential schools that forced Aboriginal children to adopt Christian values, morals, and beliefs. It was also during this country’s inception that the majority of Africans living in Canada were enslaved. A feature of slavery in Canada included restricting Africans from continuing their traditional religious practices. These examples co-exist and intertwine with histories of various racialized communities in Canada and suggest that the Canadian tradition is not as altruistic as presented in the above excerpt.
A second example in NS of the majority’s skewed framing of Canadian tradition is found at paragraph 54: “The Canadian approach in the last 60 years to potential conflicts between freedom of religion and other values has been to respect the individual’s religious belief and accommodate it if at all possible.” This statement is followed with examples of religious accommodation in the workplace, schools, cities, and legislatures. Post-Charter, the Court’s jurisprudence extols the virtues of balancing competing rights. However, the full extent of our country’s jurisprudence does not reflect this approach.
In my view, our national tradition is one in which some religions enjoy certain protections not available to other religions (e.g., our tradition of publicly funding Roman Catholic, but not other religion-based, schools). Our national tradition is one in which those who observe ‘outsider’ faiths are directly and indirectly required to prove the sincerity of their beliefs despite the promise of freedom of religion. Furthermore, the laws that require religious accommodation (i.e., the Charter and the federal and provincial human rights codes) are limited in their scope, their application, and, therefore, their enforceability.
Finally, ours is a tradition whose historic effects, which reverberate in the intent of our laws and in our national culture, render certain religious and racial groups permanent foreigners. The examination of N.S. is but one example. Consider the following statement in Justices LeBel and Rothstein’s concurring decision: “This appeal also illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions and social practices” (ibid at para 59). Canada’s Muslim communities date as far back as the 1800s. In a literal sense, Muslims are not newcomers to Canada. So while the issue of niqabs in the courtroom may be novel per se, the concomitant issues regarding contrasting religious and legal traditions are not.
Why does any of this matter? NS is about more than an accused’s right to a fair trial and the potential violation of that right caused by the accuser wearing a niqab. This case is also about the extent to which this country’s highest court is willing to acknowledge that the examination of N.S.’s religious beliefs is rooted in a colonial project that required for its success the erasure of minority communities.